Legislative Prayer Is Still OK in Nearly All Cases

By William Peacock, Esq. on May 5, 2014 11:46 AM

Not much to see here folks.

In 1983, in Marsh v. Chambers, the U.S. Supreme Court held that the Nebraska Legislature's invocations from a paid Presbyterian minister were part of a long history of prayer in the legislature, and thus did not violate the Establishment Clause. Justice Anthony Kennedy, in today's opinion in Town of Greece v. Galloway, reaffirmed that holding, and reiterated much of that history, including the occasional sectarian language employed in Nebraska, as well as in prayers delivered in Congress (from a still federally paid chaplain) during our founders' time.

What's the rule? The same as it has been since 1983: Legislative prayer is Constitutional because it is a historical tradition.

'Coercion' Test

Not all legislative prayer is acceptable, however. If the prayer crosses the line between traditional ceremony into coercion of citizens into adhering to a particular faith, it will violate the Establishment Clause. Like the last two Kennedy opinions (Affirmative Action bans, child porn victim restitution), the test is maddeningly vague.

The five-justice majority split on how much coercion might be necessary to make a legislative prayer unconstitutional. Justice Kennedy, joined by Chief Justice John Roberts and Justice Samuel Alito, waded through facts and opined that a hypothetical practice where prayer was mandatory, dissidents were criticized, or officials' action was influenced by citizens' participation (or lack therof) in the prayers would amount to sufficient coercion.

Justice Clarence Thomas, joined by Justice Antonin Scalia, argued that there wouldn't be sufficient coercion absent a tithe or the town chaining folks to the pews.

For the town of Greece, New York, at least, the majority did agree: Despite a years-long string of Christian prayers, and the sectarian language employed, the town meetings' opening invocations did not amount to coercion.

End of 'Endorsement' Test?

In 1989, the Court's marrow majority tried to narrow the Marsh holding by stating that the Nebraska prayers were non-sectarian. Kennedy, who dissented from that Allegheny Countyopinion, refuted that statement as inaccurate dicta and cast aside the Endorsement Test, at least for legislative prayers.

His opinion cited language from prayers delivered in Nebraska, as well as during the founders' time, that had a distinct sectarian note (think crosses, resurrection, explicit mentions of Easter), to hold that the appearance of endorsement of a particular faith won't suffice for a Constitutional crisis. The language and practices employed in Greece, New York, may have failed retired Justice Sandra Day O'Connor's preferred Endorsement Test, had it applied.

Guidance for Local Governments

Keep it nondiscriminatory and not coercive, and you'll be fine.

Basically, as long as the legislative prayers aren't preaching eternal damnation in order to coerce conversions, towns are given wide latitude as to the content of opening prayers -- there is no need to adopt a strictly nonsectarian tilt:

"To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town's current practice of neither editing or approving prayers in advance nor criticizing their content after the fact."

Does this mean towns can close the doors to certain faiths? Not at all, but it won't be required to bus in religious leaders from out of town either.

"So long as the town maintains a policy of nondiscrimina­tion, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing," the Court held.

What are your thoughts on today's opinion? Is this the "death of the Establishment Clause," a reasonable compromise between inclusiveness and tradition, or none of thee above? Tweet your thoughts to us @FindLawLP.

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